Tuesday, 20 November 2012

Hackgate - Dacre's Dodgy Dossier - War Of Attrition

The latest piece from my regular contributor.

What on earth could have brought about The Mail's scatter-gun 'Dodgy Dossier'? For a start, it's not even news...

13th July 2011
Way back, in the dim distant days before the Leveson (yes, there really was a time before Leveson...), Prime Minister David Cameron announced he was setting up a judge-led inquiry into press practices. Lord Justice Leveson was appointed to report to the Home Secretary and the Secretary of State for Culture, Media & Sport.

20th July 2011
The Prime Minister announced the Terms of Reference and appointment of “a panel of experts” to assist the Inquiry. He named each of them and observed (Hansard, 20 July 2011, column 918): “These people have been chosen not only for their expertise in the media, broadcasting, regulation and policing, but for their complete independence from the interested parties.” Ed Miliband too welcomed the Inquiry "and, indeed, the panel members chosen by the Prime Minister". Cameron praised cross-party agreement which had “worked well over the judicial inquiry, the panel, the terms of reference". (Hansard, 20 July 2011, column 918 onwards) So it is clear that the Assessors were Prime Ministerial appointments, in consultation with two Secretaries of State, and with cross-party agreement. They were not appointees in Leveson's gift.

At that time, News International might have been the most apprehensive about the forthcoming Inquiry. Yet, arguably, Paul Dacre and Associated Newspapers Ltd (ANL) have proved the most challenging to Lord Justice Leveson. The Inquiry would hear evidence on ANL's past record with the Press Complaints Commission (PCC) when confronted with criticism - allegedly approximating string it out, object, delay, object some more, delay, go missing, too busy, fail to respond, object again. Leveson may well have reflected later that this obdurate strategy was mirrored in ANL's dealings with him - the self-same modus operandi in macrocosm.

28th July 2011
Leveson held an initial session and press conference to introduce himself, Assessors & Terms of Reference etc. He also drew attention to the Inquiries Act, and its provision that any objections on Assessor appointments could be made within 14 days. None were made.

Summer 2011
Coordination, planning and procedural sessions continued on a variety of topics, including deciding who would have crucial Core Participant status. For example,
"Mr Mathieson of RPC repeated his position, identified in correspondence, that Associated Newspapers Ltd were minded to ask for core participant status but said that he was not in a position to do so in the absence of the Editor in Chief. On other issues, he was without instructions."

Pre-evidence discussion Seminars were scheduled Mindful to include a range of experience and opinion, Leveson invited Paul Dacre to chair one of the Seminars: "I did ask him to participate. Unfortunately, on 6th October he cannot, and I am waiting to hear from him about the 12th, I understand."

26th August 2011
ANL wrote to Leveson, questioning the role and remit of the Assessor function, and challenging three of the six Assessors - Sir David Bell (here), George Jones (here), and Elinor Goodman (here).

In addition, ANL complained that the panel of Assessors lacked balance as none had tabloid or mid-market newspaper experience (oddly overlooking Elinor Goodman's freelancing for ANL's own Mail on Sunday). Written exchanges continued with ANL adding concerns about Inquiry strategies they considered political partisanship for good measure. Letters, submissions, maneuvering rumbled on all summer, delaying and distracting from the main business of the new Inquiry, leading to this revealing exchange:

MR CAPLAN: I am sure you will understand that Associated Newspapers, whom I represent, do not in any way wish to be confrontational with the Inquiry, but you will also understand of course --

LORD JUSTICE LEVESON: The letters didn't quite read like that.

Leveson made a salient point about ANL's argument that long experience of working with tabloids should be the prime criterion for balance of Assessors. If so, he suggested, it "would have been open to them (the Ministers) or to me to appoint, for example, Mr Mulcaire. He has expertise." (ANL Oral Arguments) Far from being swatted away dismissively, Leveson mustered the patience of a saint to give ANL's objections due consideration.

17th October 2011
Leveson's formal Ruling reiterated any appeal against Assessors would have needed to be promptly addressed to the Ministers who appointed them not Leveson himself, and that he was satisfied with their relevance and integrity. By this point, it should be remembered, the Inquiry evidence Hearings hadn't even begun. Finally in mid-November the Evidence Hearings started. But by Day 2, ANL's Opening Submission again set an uncompromising tone. There were three main issues raised: the absolute necessity of press self-regulation, objections to anonymous witnesses, and - red rag to Dacre's bull - ANL's asserted innocence re Operation Motoman. (for background see here)

21st November 2012
Hugh Grant gave evidence. That evening, "Paul Dacre, the Associated Newspapers editor-in-chief, had a hand in the drafting of the Daily Mail publisher's statement accusing Hugh Grant of "mendacious smears" (Guardian)

Who can forget the interminable arguments in Court 73 twixt ANL and Mr Sherborne..?

2nd December 2011
Leveson held a closed session with Core Participant counsel to discuss the general treatment of Operation Motorman materials. A consensus was reached that there was prima facie evidence of newspaper 'bulk users' illegalities. On condition of that collective consensus, Leveson proposed not to make the Motorman files public.

In short, ANL applied for permission of overrule Leveson on allowing anonymised witness evidence from those fearful of victimisation. ANL opined that Leveson would thereby be trampling on natural justice, risked causing them reputational damage, and trangressed their section 10 Human Rights. Mr Justice Toulson declined...

...to micromanage the conduct of the Inquiry by the Chairman... (I) refuse this application for judicial review. For the future,...protocol will be matters of detailed consideration for him, which should not foreseeably give rise to further requests for judicial interference.

Mr Justice Sweeney: I agree.

Mrs Justice Sharp: I also agree.

The week scheduled for evidence from Editors was inconvenient for Dacre - again. Robert Jay reported, ...

some people may be wondering why Mr Paul Dacre is not on the list for today. The answer is he's not available for the rest of this month, and indeed for today, but we have lined him up, as it were, for 6 February

6th February 2012
Dacre's first appearance. Duly sworn-in, Leveson welcomed him: "Mr Dacre, I thank you, as I've thanked the editors of other newspapers who have allowed me to visit their newsrooms. I know you weren't there at the time but I'm grateful to you for allowing me to do so"

Asked by Robert Jay if complainants to the PCC were commonly worn down by a protracted ANL 'war of attrition', Dacre categorically denied it (p45). When questioned closely on Motorman and use of Steve Whittamore, Dacre became obstinate and combative. He refused to accept ANL's titles might have been complicit in illegality so Leveson called a short break to allow him to consult Counsel. On return Dacre was hardly pacified, asserting that whilst Whittamore may have done illegal acts ANL journalists had demonstrably not. (p57)

Because of the spat over Hugh Grant and the 'mendacious smear' allegation - Leveson directed that Dacre return for a second appearance. Mr Caplan QC first argued against Dacre having to appear again, and then seemed to prevaricate as to whether Dacre would even comply. The exchanges are interesting:

LORD JUSTICE LEVESON: We, of course, as you know, fitted in to Mr Dacre's timetable.... We WILL find some short period of time for this to be the subject of further evidence and we shall do that this week. And there it is.
MR CAPLAN: Sir, I obviously will have to make enquiries of --
LORD JUSTICE LEVESON: Yes.
MR CAPLAN: I have no idea of Mr Dacre's whereabouts.
LORD JUSTICE LEVESON: Mr Caplan, I'm very sorry. I know that Mr Dacre is busy. We have worked very hard to fit ourselves around his commitments. I cannot believe that in the next three days it is not possible to find a few minutes. We shall fit ourselves around him to such extent as we can but I beg you not to ask me to go further.

14th June 2012
ANL's counsel wrote to the Inquiry and, arguably, reneged on the consensus understood to be have been reached that the Motorman files demonstrated prima facie offences by press journalists.

18th June 2012
The Mail splashed its story alleging that Leveson had threatened to resign, was stifling free speech, and had clashed with Michael Gove's right-minded defence of press liberty.

In ANL’s submission the issues to be considered are as follows:
(1) Whether it is open to the Chairman to express concerns based on suspicion?
(2) If so, in what circumstances, including, whether the grounds giving rise to the suspicion must be reasonable grounds or whether a lower standard of proof is acceptable, having regard to the duty of fairness?
(3) Whether it is fair or appropriate when dealing with allegations of a criminal or quasi-criminal nature for the Chairman to state that he finds such allegations proved on the civil standard?

10th July 2012
Leveson's measured response, via written Ruling - addressed solely to ANL - was that he considered "it would not be appropriate to reach a conclusion about the Whittamore material that one of the most significant core participants (and one of the largest users of Mr Whittamore’s services) wished to challenge without deploying that evidence in public" (p8) So, Leveson was being very clear that he could and would put selected Motorman evidence into the public domain. As just ANL were recanting, he was prepared to arrange that only Motorman files exclusively linked to ANL titles would be made public. To reinforce the point, he was happy to order the necessary additional public Hearings in August. It did not sound as though Leveson was making an empty threat.

13th July 2012
ANL backed down by apologising for any misunderstanding: "It was not our intention to resile from the position confirmed on a confidential basis to the Inquiry in December 2011." (see here)

Lord Justice Leveson and Mr Jay QC must have given sighs of relief.... prematurely.

ANL also remains concerned that one of the Assessors who will be assisting the Chairman in his task is the former chairman of the Media Standards Trust, whose proposals for regulation - opposed by ANL and other publishers - include a proposed regulatory "backstop"

23rd July 2012Future Directions Ruling (here). Amongst other observations, Leveson returned to Operation Motorman. One outstanding issue he identified was "concerning the attitude of Associated Newspapers Ltd to the evidence revealed in the documentation seized from the private detective Steve Whittamore." He reported back publicly ANL's letter apologising for any misunderstanding on the Motorman evidence. Leveson also reminded that Mr Sherborne (Counsel for Core Participant Victims) was in the process of collating information on journalists named in the Motorman files who were still in continuous employment with the relevant titles. This exercice was to determine if those journalists had been rewarded by promotion or had perhaps retained data obtained from Whittamore. Once presented, Leveson required responses from the newspapers by 10th September. at time of writing, only one of those responses has been made public on the Inquiry web site - from ANL.

7th Sept 2012
Two days before the deadline, ANL sent the Inquiry 'Witness Statement from ANL re Steve Whittamore data'. It suggested that the Inquiry misunderstood the organic, perhaps haphazard, nature of working journalists collection and retention of people's personal data that they procured. ANL considered it disproportionate to search for and collate this "low grade" personal information, failed to name any journalists, and said they did not realise that Leveson actually required a response to his request made to Dacre as the Inquiry team had omitted to remind them.

16th November 2012
Safely past the cut-off date which may have risked another Leveson admonishment, Dacre launched his 'Dodgy Dossier' fusillade. Obviously unused to not getting his own way, the 'Special Investigation' targeted Leveson's questionable associates, raising "disturbing questions" of the "quasi-masonic nexus" of "an elite" of "People-Who-Know-Best". (Dossier here)

What could have provoked Dacre's itchy trigger finger? Well, there is one thing left out of our timeline as we don't know the 'if' or 'when'. It is a requirement that Lord Justice Leveson write, giving notice and inviting response, to anyone he intends to criticise in his Final Report.

Hmmmm.... could it be that Dacre's Mail have had a Section 13 letter from Lord Justice Leveson?